Eric Segall, Con Law professor at Georgia State, writes for Slate that Elena Kagan ought to recuse herself from the upcoming health care case.
One piece of evidence that he marshals is an email Kagan sent to Laurence Tribe expressing joy at the passage of the law. He asks: “Would these two constitutional law giants celebrate the passing of a law they believed violated the Constitution?”
To me, this just speaks to the silliness that comes from the pretense that the Court is composed of apolitical entities who merely judge the Constitutional merits of law with no other consideration.
Of course Kagan doesn’t think the law violates the Constitution. Why are we searching through tea leaves to make these judgments about bias? No one anywhere on Planet Earth thinks that Kagan would judge this law to be unconstitutional. In fact, Segall’s whole article assumes this premise.
And the reason WHY she thinks it’s Constitutional has absolutely nothing to do with the fact that she was the Solicitor General for Obama. Or, it’s correlated but only in the opposite direction. She got the job, and the appointment, because her judicial philosophy aligns with Obama’s.
The key paragraph is this:
Can Justice Kagan review the ACA without regard for the personal and professional past and the future of President Obama as well as her prior work in the administration? Can she look at the ambiguous and open-ended Commerce Clause precedents of the court and reach a legal answer with no awareness of the political implications for the president who so recently employed and appointed her? If the answer is yes, she is more robot than judge. If the answer is no, she should recuse herself.
This just misses the boat, in my opinion. It conflates two very different issues. No, she could not possibly “reach a legal answer with no awareness of the political implications” because NO judge can do that. But her working for Obama just has nothing to do with it. She could have lived on Jupiter for the three years prior to getting the nomination, been given a copy of the law there, and she would have been just as likely to consider it Constitutional.
Frankly, it does more harm to the legitimacy of the institution to pretend, contra all facts, that the Court is only operating correctly when it is offering pure, unbiased legal judgment. I think the public (insofar as it cares at all) is smart enough to understand that these are political actors tasked with legal responsibilities.